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Himachal Pradesh High Court · body

2014 DIGILAW 1419 (HP)

Vinod Kumar Khadia v. State of H. P.

2014-10-13

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 16.2.2011 and consequent order dated 17.2.2011, rendered by the learned Addl. Sessions Judge, Solan, H.P. in Sessions Trial No. 5-S/7 of 2010, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 302 IPC, was convicted and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 20,000/- and in default of payment of fine, the accused was ordered to suffer further imprisonment for one year. 2. The case of the prosecution, in a nut shell, is that on 23.11.2009, at about 10:30 PM, accused gave beatings with the help of a wooden piece, Ext. P-1 and inflicted injuries with knife Ext. P-2, to Smt. Kiran Bala. The children raised hue and cry. The noises were heard by PW-1, Sushil Kumar. The elder son of the accused called PW-2, Naresh Kumar. PW-2, Naresh Kumar reached the spot and Kiran Bala was given beatings by the accused in their presence with the help of Ext. P-1. Thereafter, PW-13 Prabhu Dayal, Vice President of Panchayat, was called on telephone. The deceased was lying unconscious on the floor. The statement of PW-1 Sushil Kumar was recorded under Section 154 Cr.P.C. vide memo Ext. PW-1/A. FIR Ext. PW-10/B was registered on the basis of the statement Ext. PW-1/A. PW-6 ASI Yadav Singh moved an application Ext. PW-6/B to the doctor who opined vide his opinion Ext. PW-6/D that the victim was not fit to make the statement. The deceased died at PGI, Chandigarh on 27.11.2009. The blood stained wooden block, knife, pieces of bangles and blood lying on the floor was taken into possession. The site was photographed. The sketch of wooden block and knife were drawn. These were sealed in a cloth parcel with seal 'T’. Ext. P-1 wooden block and knife Ext. P-2, were sent to FSL, Junga through PW-9 alongwith pant of the accused and report of FSL is Ext. PW-14/J. The police prepared the spot map. The post mortem of dead body was conducted by PW-15, Dr. S.P. Mandal on 30.11.2009. The police completed the investigation and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 15 witnesses to prove its case. PW-14/J. The police prepared the spot map. The post mortem of dead body was conducted by PW-15, Dr. S.P. Mandal on 30.11.2009. The police completed the investigation and the challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 15 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. According to him, he was falsely implicated in the case and claimed to be innocent. He also deposed that his wife fell from the lintel and he was not present at his house at the time of the incident. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. The Advocate on behalf of the accused was not present on two dates and Mr. M.A. Khan, learned Addl. Advocate General appeared for the State. Mr. M.A.Khan, learned Addl. Advocate General, has supported the judgment of the learned Addl. Sessions Judge, Solan, H.P. dated 16.2.2011. 5. We have gone through the impugned judgment dated 16.2.2011 and records of the case carefully. 6. PW-1 Sushil Kumar, deposed that the houses of Naresh Kumar Attri and Leela Dutt are adjoining to his house. He knew accused Vinod Kumar. He remained the tenant of Leela Dutt for about one or two months. The accused was residing in a rented accommodation alongwith his wife and three minor children. On 23.11.2009 at about 10:30 PM, he heard noise from the house of Leela Dutt. The elder son of accused was knocking at the door of his neighbor Naresh Kumar Attri and was shouting that his mother had been killed by his father. Thereafter, he alongwith Naresh Kumar Attri went to the room of the accused where deceased Kiran Bala wife of the accused was lying on the floor in a pool of blood. She was unconscious and the accused was standing there. They enquired from the accused as to why he killed his wife. The accused told them that he had received telephonic calls from his native place that his entire family shall be eliminated. He further disclosed that he thought before his family is killed by someone else he killed his wife and thereafter he was to kill his children and himself lateron. Rest of the family members were saved due to the shouting of elder son of the accused. He further disclosed that he thought before his family is killed by someone else he killed his wife and thereafter he was to kill his children and himself lateron. Rest of the family members were saved due to the shouting of elder son of the accused. The accused disclosed that he killed his wife with the help of wooden piece and knife. The wooden piece and knife were lying on the spot. They telephonically called Prabhu Dayal, Up-Pradhan of Gram Panchayat, who informed the police for further proceedings. The police came to the spot. His statement under section 154 Cr.P.C. was recorded. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that when he reached in the room of the accused, the accused was beating the deceased with the wooden piece. He admitted that the deceased was saved by them from the clutches of the accused. In his cross-examination by the learned Advocate for the accused, he deposed that his house was at a distance of approximately 10 feet from the house of Leela Dutt. He was watching T.V. in the ground floor. He was residing with his mother and wife in his house and they were present in the house on that night. There were other houses situated at a distance of approximately 25 feet from his house and the house of Naresh Kumar Attri. He has never seen the accused quarreling with his wife. The elder son of the accused was about 3-4 years old. His statement was recorded by the police in the hospital. 7. PW-2 Naresh Kumar Attri deposed that on 23.11.2009 at about 10:45 PM, he was present in his house. The elder son of accused Vinod Kumar knocked his door. He opened it and the boy asked him to save his mother. He told him that the accused was beating his wife. He visited the room of the accused who was tenant of Leela Dutt. After hearing the noise, PW-1 Sushil Kumar, also came and they both visited the room of the accused. When they went inside the room of the accused, he was beating his wife with the help of wooden piece and was also having knife in his hand. The deceased was lying unconscious on the floor. The accused had thrown her by pulling her from legs on the floor. When they went inside the room of the accused, he was beating his wife with the help of wooden piece and was also having knife in his hand. The deceased was lying unconscious on the floor. The accused had thrown her by pulling her from legs on the floor. Thereafter they saw the face of the wife of the accused which was badly injured. The accused on their inquiry told them that he will finish his wife. He called up-Pradhan Prabhu Dayal from his telephone. He came to the spot and called the police. The police reached the spot and inspected the spot. He identified wooden piece Ext. P-1 and knife Ext. P-2. In his cross-examination, he admitted that there are 40-50 houses in their village and the population is approximately 100-150. He also admitted that the child of accused was 3-4 feet in height and might be 9-10 years old. He was residing with his wife and son in his house. His son is 24 years old. 25-30 people had assembled on the spot. He told the police that the boy of the accused had come to him. He had stated to the police that the boy of accused had come to him and he knocked his door and thereafter he told him to save his mother from his father. Confronted with statement of this witness mark PW-2/A, wherein it is not so recorded. 8. PW-3 Leela Dutt, has deposed that the accused was his tenant since October, 2009. 9. PW-4 Gopal Singh, Patwari has prepared the spot map Ext. PW-4/A, tatima Ext. PW-4/B and issued copy of jamabandi Ext. PW-4/C. 10. PW-5 Madan Lal, deposed that he was working as Manager in All India Sewa Samiti Chandigarh. They were informed by Satish Kumar from PGI Chandigarh and thereupon they visited PGI, Chandigarh. The dead body of deceased Kiran Bala was unclaimed, so the body was cremated by the Samiti. 11. PW-6 ASI Yadav Singh, deposed that on 23.11.2009, at 10:55 PM, Sh. Prabhu Dayal, Vice President telephonically informed at Police Post that a tenant of Leela Dutt had beaten his wife. He made the report in the Daily Diary Register at Sr. No. 10, which is Ext. PW-6/A. He alongwith other police officials rushed to the spot. The deceased was badly injured and was unconscious at that time. Accused Vinod Kumar was also present there. He made the report in the Daily Diary Register at Sr. No. 10, which is Ext. PW-6/A. He alongwith other police officials rushed to the spot. The deceased was badly injured and was unconscious at that time. Accused Vinod Kumar was also present there. He immediately informed SHO PS Kasauli and immediately shifted the deceased to PHC Dharampur. He moved application Ext. PW-6/B to the doctor. The doctor opined vide Ext. PW-6/C that the victim was not fit to give statement. He procured MLC mark 'A’. He recorded statement of Sushil Kumar Ext. PW-1/A. The deceased died at PGI, Chandigarh. He admitted in his cross-examination that the accused was not formally arrested since the deceased was very serious and they were concerned about the condition of the deceased at that relevant time. The 'rukka’ was sent to SHO at about 2:30 PM. 12. PW-7 Dr. Naresh Attri, deposed that he examined the accused. His blood stained pant was sealed by him with the seal impression 'X’. He issued MLC Ext. PW-7/B. 13. Statements of PW-8 MC Hardev Singh, PW-9 Const. Shyam Lal and PW-10 HC Chet Ram are formal in nature. 14. PW-11 HC Rakesh Kumar, deposed that on 24.11.2009, SHO Ramesh Thakur, deposited with him a parcel duly sealed with seal 'T’ stated to be containing a wooden piece, knife and blood lifted from the spot. He entered these items at Sr. No. 237 of the Malkhana register. On 25.11.2009, SHO again deposited with him parcel duly sealed with seal 'X’ stated to be containing pant of the accused Vinod Kumar. He entered the same at Sr. No. 238 of the Malkhana register. These parcels were sent to FSL Junga for examination. 15. PW-12 Dr. Parvinder Singh, deposed that he examined Kiran who was brought to him by police vide request Ext. PW-6/B. He issued MLC Ext. PW-12/A. He noticed following injuries on the person of deceased : “1. There was an open wound about 5 cm x 1 cm on chin straight clean and clear margins from left side towards centre, fresh blood was oozing from the wound. 2. There was lacerated, open wound 1 cm - 3 cm on forehead, above the left eye brow with 1 cm in breadth. Fresh blood was present. I have drawn the shape of injury in the MLC. 3. There was swelling over left eyelid. It was of bluish discleration. 4. 2. There was lacerated, open wound 1 cm - 3 cm on forehead, above the left eye brow with 1 cm in breadth. Fresh blood was present. I have drawn the shape of injury in the MLC. 3. There was swelling over left eyelid. It was of bluish discleration. 4. Bleeding was present from mouth and teeth. Patient was unconscious, pulse rate 100 p.m. respiratory rate 22 per minute and pupils were slowly reacting.” The probable duration of all the injuries was less than 12 hours at the time of examination. The injury No. 1 was caused with the sharp weapon whereas injuries No. 2, 3 & 4 were caused with a blunt weapon. He issued final opinion in this regard on MLC Ext. PW-12/A vide Ext. PW-12/B. According to him, injury No. 1 in MLC Ext. PW-12/A could be caused by knife Ext. P-2 shown to him in the Court. The injuries No. 2, 3 & 4 shown in Ext. PW-12/A could be caused with the wooden block Ext P-1. He admitted that in PW-12/A, there were some cuttings in the column of date and arrival of patient in the hospital. 16. PW-13 Prabhu Dayal, deposed that on 23.11.2009, he was at his residence at about 10:45 PM. PW-1 Sushil Kumar telephonically informed him that a quarrel had taken place between the husband and wife who were tenants of Leela Dutt. Thereupon, he telephonically informed at Police Chowki Garkhal. He visited the house of Leela Dutt. Accused Vinod Kumar was found present in his room. His wife was lying on the floor. She was unconscious and had sustained injuries on her head which were bleeding. In the meantime, accused Vinod Kumar fled away from the spot. After some time, the police also reached at the spot. The room was locked on 24.11.2009. In his presence, the police seized the wooden block, knife, piece of bangles and blood from the room of the accused. In his cross-examination, he deposed that after receipt of the telephonic call, he went to the spot. He noticed Sushil Kumar and Naresh Kumar already present on the spot. The children of the accused were weeping in the room. His house is at the distance of approximately 50 meters. The house of Sushil Kumar and Naresh Kumar are adjoining to the room of the accused. He noticed Sushil Kumar and Naresh Kumar already present on the spot. The children of the accused were weeping in the room. His house is at the distance of approximately 50 meters. The house of Sushil Kumar and Naresh Kumar are adjoining to the room of the accused. However, there were so many houses in the village at some distance of the house of Leela Dutt. He had never summoned accused in Panchayat, since no written complaint was received against him. The accused ran away from the spot after sometime when he reached at the spot. They did not apprehend the accused since they were more worried about the condition of the wife of the accused. 17. PW-14 Inspector Ramesh Thakur, deposed that on 24.11.2009, ASI Yadav Singh, Incharge PP Garkhal sent the statement of Sushil Kumar Ext. PW-1/A alongwith “rukka” Ext. PW-6/D, through HC Raghubir Singh. Thereafter, he recorded FIR Ext. PW-10/B. He visited the spot in the presence of Vice President Prabhu Dayal. He clicked the photographs. He took into possession wooden block and knife. The accused was arrested. He was got medically examined. He got prepared the spot map Ext. PW-4/A, tatima Ext. PW-4/B and jamabandi Ext. PW-4/C. In his cross-examination, he admitted that it is not mentioned in the FIR whether it was recorded at 1:45 AM or PM. He met the children on the spot. He inquired from the children but they could not understand since they were small and had some language problem. According to him, the son of the accused was approximately 5-6 years old. They were not cited as witnesses since they could not understand his queries. The accused was arrested on 24.11.2009 at 4:00 PM. 18. PW-15 Dr. S.P. Mandal, has conducted the post mortem examination on the body of the deceased. According to him, the deceased died due to shock and head injury. The injuries were ante mortem caused with blunt weapon. The probable duration between injury and death was around 4 days and between death and post mortem was 76 hours. The copy of the post mortem repot is Ext. PW-15/B. He admitted in his cross-examination that there was no fracture in the scalp. 19. The statement of PW-1 Sushil Kumar was recorded under Section 154 Cr.P.C. vide memo Ext. PW-1/A. It is specifically stated in Ext. PW-1/A that on 23.11.2009 at 10:45 PM he was in his room. The copy of the post mortem repot is Ext. PW-15/B. He admitted in his cross-examination that there was no fracture in the scalp. 19. The statement of PW-1 Sushil Kumar was recorded under Section 154 Cr.P.C. vide memo Ext. PW-1/A. It is specifically stated in Ext. PW-1/A that on 23.11.2009 at 10:45 PM he was in his room. He heard cries from the house of Leela Dutt. He alongwith his neighbor Naresh Kumar Attri went to the spot. The tenant of Leela Dutt, Vinod Kumar was beating his wife with wooden block. He and Naresh Kumar saved the deceased from the clutches of Vinod Kumar with great difficulty. According to him, it appeared that the accused has given knife blow on the body of the deceased. Vinod Kumar ran away from the spot proclaiming that he would kill his wife. If they had not reached the spot, the accused would have killed his wife. He informed the Up-Pradhan Prabhu Dayal about the incident. However, when Sushil Kumar appeared before the Court as PW-1, he deposed that he was watching T.V at 10:30 PM on 23.11.2009. He heard noises from the house of Leela Dutt. The children were crying. The elder son of accused was knocking at the door of his neighbor Naresh Kumar Attri and was shouting that his mother had been killed by his father. Thereafter, he and Naresh Kumar Attri went to the room of the accused where deceased was lying on the floor in a pool of blood. She was unconscious. They inquired from the accused why he killed his wife. The accused told them that he received telephonic calls from his native place that his entire family shall be eliminated. He further disclosed that before his family is killed by someone else he killed his wife and thereafter he was to kill his children and himself lateron. In his cross-examination, he admitted that he has never seen the accused quarreling with his wife. His house was at a distance of 10 feet from the house of Leela Dutt. There were many houses in the locality. PW-2 Naresh Kumar Attri, has given a different version. According to him, when they went inside the room of the accused, he was beating his wife Kiran Bala with the help of wooden block and was also carrying one sharp edged weapon in his hand. There were many houses in the locality. PW-2 Naresh Kumar Attri, has given a different version. According to him, when they went inside the room of the accused, he was beating his wife Kiran Bala with the help of wooden block and was also carrying one sharp edged weapon in his hand. The deceased was lying unconscious on the floor. The accused, on their enquiry, told them that he would finish his wife. He called Prabhu Dayal from his telephone, who came to the spot. 20. PW-1 Sushil Kumar, though in his statement under Section 154 Cr.P.C. has stated that when he and Naresh Kumar PW-2 went to the room, the accused was beating his wife. They saved her from the clutches of the accused. However, when PW-1 Sushil Kumar appeared in the Court, as noticed by us hereinabove, he deposed that when he and Naresh Kumar went to the room of the accused, the deceased was lying on the floor. He has not deposed that he had seen the accused giving beatings to the deceased. PW-2 Naresh Kumar Attri, has deposed that they had seen accused giving beatings to his wife with the help of wooden block and was carrying sharp edged weapon in his hand. PW-6 ASI Yadav Singh, reached the spot after receiving information at 10:55 PM on 23.11.2009. He has not arrested the accused on 23.11.2009. The accused was arrested on 24.11.2009 at 4:00 PM. The explanation given for not arresting the accused on 23.11.2009 is that they were more worried about the condition of the deceased. PW-13 Prabhu Dayal, has admitted in his cross-examination that he has never summoned the accused in the Panchayat since no written complaint was ever recorded against him. The deceased, as per the opinion of PW-15 Dr. S.P.Mandal, died due to shock and head injuries. 21. PW-1 Sushil Kumar has not seen the accused beating his wife though he had gone to the room where the accused was residing with PW-2 Naresh Kumar Attri. PW-2 Naresh Kumar Attri in view of the statement of PW-1 Sushil Kumar cannot be termed as eye-witness to the incident, more particularly, when both PW-1 and PW-2 have entered the room simultaneously. According to PW-2 Naresh Kumar Attri, the elder son of the accused knocked his door. Thereafter he visited the room of the accused with PW-1 Sushil Kumar. He was confronted with Ext. According to PW-2 Naresh Kumar Attri, the elder son of the accused knocked his door. Thereafter he visited the room of the accused with PW-1 Sushil Kumar. He was confronted with Ext. PW-2/A wherein it is not so recorded. The prosecution has not examined the elder son of the accused. According to PW-1 Sushil Kumar, the age of the elder son of the accused could be 3-4 years. According to PW-2 Naresh Kumar Attri, the age of the boy could be between 9-10 years. According to PW-14 Inspector Ramesh Thakur, the age of the elder son of the accused was about 5-6 years. The child has not been examined. The explanation given by PW-14 Inspector Ramesh Thakur, as to why he has not cited the child as witness is that the child could not understand the queries and there was some language problem. The child was material witness, since according to the case of the prosecution; he went to the house of PW-2 Naresh Kumar Attri. The prosecution has not attributed a specific motive why the accused would have killed his wife. The only evidence to this effect is statement of PW-1 Sushil Kumar that the accused has told them that he has received telephonic calls from his native place that his entire family would be eliminated and he further disclosed that before his family is killed by someone else, he killed his wife and thereafter he was to kill his children and himself lateron. This version of PW-1 Sushil Kumar, cannot be believed. The person would not kill his wife and thereafter children and try to commit suicide only because somebody had advanced threats to his family. He would try to protect his family instead of killing his family members. 22. PW-1 Sushil Kumar and PW-2 Naresh Kumar Attri were residing with their family members. The family members ought to have accompanied them when they visited the house of the accused, more particularly, when according to them the accused was giving beatings to the deceased. The family members would have definitely visited the house of the deceased. There are about 40-50 houses in the village. The house of the accused was situated in the middle of the village. The population was approximately 100-150. The family members would have definitely visited the house of the deceased. There are about 40-50 houses in the village. The house of the accused was situated in the middle of the village. The population was approximately 100-150. If the children were crying in the house and one boy had gone to the house of PW-2 Naresh Kumar Attri, it would have drawn the attention of the other villagers. None other than PW-1 Sushil Kumar and PW-2 Naresh Kumar Attri has visited the spot, though PW-13 Prabhu Dayal also reached after some time. According to PW-1 Sushil Kumar, he heard the noise emanating from the house of Leela Dutt at 10:30 PM on 23.11.2009, however, in his statement recorded under Section 154 Cr.P.C, it is stated that it was at 10:45 PM that he heard the noise coming from the house of Leela Dutt. According to Naresh Kumar Attri PW-2, he was present in the house at 10:45 PM when the elder son of the accused Vinod Kumar knocked the door. 23. The defence of the accused before the trial Court was that he was not present in his house on the date of the incident i.e. on 23.11.2009. PW-6 ASI Yadav Singh, has deposed that the accused was arrested on 24.11.2009. PW-14 Inspector Ramesh Thakur, has also admitted that the accused was arrested on 24.11.2009. The accused could have been arrested on 23.11.2009 itself. The explanation given by PW-6 ASI Yadav Singh and PW-14 Inspector Ramesh Thakur, is that the accused was not arrested for the simple reason that they were looking after the deceased. The deceased had already been taken to the hospital and if the accused was present on the spot, he ought to have been arrested on 23.11.2009 itself. The fact that he has not been arrested on 23.11.2009 but on 24.11.2009, probablizes the defence of the accused that he was not present on the spot at the relevant time. 24. There are major contradictions in the statements PW-1 Sushil Kumar, PW-2 Naresh Kumar vis-à-vis the manner they have entered the house and seen the incident on 23.11.2009. The prosecution has not attributed any specific motive towards the accused. The eldest son of the accused was a material witness, who has not been examined. The explanation given by PW-14 Inspector Ramesh Thakur, for not examining him is not believable. The prosecution has not attributed any specific motive towards the accused. The eldest son of the accused was a material witness, who has not been examined. The explanation given by PW-14 Inspector Ramesh Thakur, for not examining him is not believable. Thus, the prosecution has failed to prove its case against the accused beyond reasonable doubt. 25. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 16.2.2011 and consequent order dated 17.2.2011, rendered by the learned Addl. Sessions Judge, Solan, in Sessions trial No. 5-S/7 of 2010, is set aside. The accused is acquitted of the charge framed under Section 302 IPC, by giving him benefit of doubt. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 26. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.